Catholic Education Office and Human Rights and Equal Opportunity Commission [2003] AATA 899 (12 September 2003)

Last Updated: 17 September 2003

DECISION AND REASONS FOR DECISION [2003] AATA 899

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. N2003/494

GENERAL ADMINISTRATIVE DIVISION	)
	Re	CATHOLIC EDUCATION OFFICE

Applicant

And

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

Respondent

DECISION

Tribunal

Senior Member M D Allen

Date 12 September 2003

Place Sydney

Decision

The Tribunal refuses the application of the Independent Education Union of Australia to be joined as a party to this Application for Review.

(Sgd) M D Allen

..............................................

Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE: Application to be joined as a party. Applicant to be joined had made submissions to the Respondent before the Respondent made decision under review. Not a party to original application. Not a party whose interests were affected and in any event the Tribunal should not exercise discretion to join.

Administrative Appeals Tribunal Act 1975 - ss.30(1)(A)

Sexual Discrimination Act 1984 - s.44

Re: Drake and the Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634 at 636

McDonald v Director General Social Security (1984) 1 FCR 35

Re: Cimino and Director General of Social Security (1982) 4 ALN N106

Allan v Transurban City link Ltd 75 ALJR 1551

Alphapharm v Smithkline Beecham (Australia) Pty Ltd (1994) 49 FCR 250

United States Tobacco Company v Minister for Consumer Affairs and Others (1988) 20 FCR 520 at 529

Control Investments Pty Ltd v Australian Broadcasting Tribunal (1980) 50 FLR 1

R v The Australian Broadcasting Tribunal and Others, Ex parte Hardiman and Others (1980) 144 CLR 13

New Broadcasting Ltd v The Australian Broadcasting Tribunal; Treasure (Party joined) (1987) 73 ALR 420

Re: Marine World Victoria Ltd and Minister for Arts, Heritage and The Environment (1986) 10 ALD 262

Re: Boyd and Comcare (1991) 23 ALD 392

Commonwealth v Human Rights and Equal Opportunity Commission and Another (1987) 76 FCR 513

Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666

REASONS FOR DECISION

12 September 2003

Senior Member M D Allen

1. On 25 March 2003, the Applicant lodged with the Tribunal an application to review a decision of the Respondent made 28 February 2003. That decision rejected an application by the Applicant for a temporary exemption from the Sex Discrimination Act 1984 ("SD Act") pursuant to section 44 of that Act.

2. Section 44 of the SD Act, reads inter alia,

"Commission may grant exemptions

(1) The Commission may, on application by:

(a) a person, on that person's own behalf or on behalf of that person and another person or other persons;

(b) 2 or more persons, on their own behalf or on behalf of themselves and another person or other persons; or

(c) a person or persons included in a class of persons on behalf of the persons included in that class of persons;

by instrument in writing, grant to the person, persons or class of persons, as the case may be, an exemption from the operation of a provision of Division 1 or 2, or paragraph 41(1)(e), or paragraph 41B(1)(b), as specified in the instrument.

(2) ...

(3) ..."

3. The temporary exemption sought for a period of five years, the opportunity to offer teacher training scholarships to males only in order to increase the number of males teaching in Catholic Primary Schools.

4. Although section 44 of the SD Act does not require it to do so, the Respondent took it upon itself to seek submissions in respect of the said application. According to its reasons for decision, the Respondent received five submissions in support of the said application and six opposed.

5. One of the opposing submissions was lodged by the Independent Education Union of Australia, a body which purports to represent "professional and industrial interests of teachers and support staff in Catholic and Independent schools".

6. By application received 16 May 2003, the Independent Education Union of Australia ("the Union") applied to be made a party to these proceedings.

7. Subsection 30(1A) of the Administrative Appeals Tribunal Act 1975 ("AAT Act") reads:

"Where an application has been made by a person to the Tribunal for a review of a decision, any other person whose interests are affected by the decision may apply, in writing, to the Tribunal to be made a party to the proceeding, and the Tribunal may, in its discretion, by order, make that person a party to the proceeding."

8. The Respondent consented to the joinder but the Union's application was opposed by the Applicant to the proceedings. The said application by the Union came on for hearing before me on 13 August 2003 and although the documents prepared for the Tribunal pursuant to section 37 of the AAT Act were taken in by me as exhibits T1-T22, it must be kept firmly in mind that the substantive issues raised by the application for review were not before me but simply the issue whether pursuant to subsection 30(1A) of the AAT Act, I was satisfied that:

"(1) the interests of the Union were affected by the decision under review, and;

(2) whether I should exercise my discretion and direct that the Union be made a party to these proceedings".

9. In considering whether to exercise my discretion, what must be kept in mind is that whereas proceedings before the Tribunal often have the appearance of being adversarial, they are not adversarial in the sense that proceedings in the common law courts may be said to be adversarial. The duty of the Tribunal is, to paraphrase Brennan J (as he then was) in Re: Drake and the Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634 at 636 to make the correct or preferable decision on the material before the Tribunal. In that regard, the duty of the Respondent is to assist the Tribunal in reaching the correct decision and the role of the Respondent's representative is not adversarial: see Northrop J in McDonald v Director General Social Security (1984) 1 FCR 354 and Deputy President Todd in Re: Cimino and Director General of Social Security (1982) 4 ALN N106.

10. As to whether any interests of the Union were affected, regard must be had to the legislation in question: see Allan v Transurban City link Ltd 75 ALJR 1551 at 1555 (paragraph 15). Cf Alphapharm v Smithkline Beecham (Australia) Pty Ltd (1994) 49 FCR 250 at 260 when Davies J drew attention to the distinction between the phrase "interests are affected" where used in administrative review and the term "aggrieved" when used in the context of judicial review and held that administrative review forms part of the process of administrative decision-making in order to promote the objects of the statute in question. A consideration is whether the party seeking to be joined could have made the original application or been a party thereto.

11. The application pursuant to section 44 of the SD Act was not made by the Union nor was the Union a party to the said application as opposed to a body who took advantage of the Respondent's invitation for submissions.

12. In United States Tobacco Company v Minister for Consumer Affairs and Others (1988) 20 FCR 520 at 529, the Court quoted with approval the remarks of Davies J in Control Investments Pty Ltd v Australian Broadcasting Tribunal (1980) 50 FLR 1 at 8-9 namely:

"In their context in ss 27 and 30, the words `interests are affected in' denote interests which a person has other than as a member of the general public and other than as a person merely holding a belief that a particular type of conduct should be prevented or a particular law observed. The interests affected may not be a legal interest nor need the person seeking a joinder established legal ownership of the interests. ... a person seeking joinder must be able to identify a relevant interest which is his. ... The nature of the interest required in a particular case will be influenced by the subject matter and context of the decision under review."

13. Whereas the Union does represent the interests of teachers and student teachers, it also represents, according to its submission "education support staff, clerical and administrative staff and other ancillary staff such as cleaners and ground persons employed in secondary schools, pre-schools and kindergartens, English and Business Colleges".. In other words, a diverse collection of people across Australia.

14. The Respondent would no doubt defend its decision to seek submissions on the application made by the Applicant by reference to the general article of paragraph 48 (1)(h) of SD Act, however the fact that the Union made submissions to the Respondent does not in my opinion elevate its standing to that of a person whose interests are affected.

15. Even if I am wrong on this threshold question of whether the Union's interests are affected or not, there is still a discretion to be exercised.

16. At the outset, let me say that any reliance upon R v The Australian Broadcasting Tribunal and Others, Ex parte Hardiman and Others (1980) 144 CLR 13 to support a submission that the Respondent should not take an active part in these proceedings is misconceived. Ex parte Hardiman (supra) concerned an application for mandamus and prohibition. At 144 CLR 35, the Court refers to "in cases of this kind ..." that is to say prerogative writs. Similarly different considerations will apply in cases pursuant to the Administrative Decisions Judicial Review Act 1977 in contra distinction to matters before this Tribunal. The distinction was referred to by Davies J in New Broadcasting Ltd v The Australian Broadcasting Tribunal; Treasure (Party joined) (1987) 73 ALR 420 at 430-431 where after distinguishing Ex parte Hardiman (supra), his Honour goes on to state:

"However, in a proceeding before the Administrative Appeals Tribunal (the AAT), it is not unusual for the representative of the decision-maker to play an active role in examining and cross-examining witnesses and to put substantive arguments. That is indeed the normal and desirable course. It is also the course which is intended by the provisions of the Administrative Appeals Tribunal Act 1975 (Cth). Section 30(1) of that Act provides that the person who made the decision will be a party to the proceedings before the AAT. The AAT proceeds by way of a hearing or re-hearing at which the parties attend. The function of the AAT is review on the merits of a matter. It considers for itself both the facts and the law. Seldom does the AAT refer a matter back to the decision-maker to be fully re-considered. In the overwhelming proportion of cases, the AAT considers for itself what decision, in the exercise of the primary decision-making power, is the correct or preferable decision."

17. Control Investment (supra) is authority for the proposition that even if a finding is made that a person is an interested person, that does not necessarily mean that they are entitled to be joined as a party to the proceedings. At 50 FLR 10, Davies J said:

"while it will ordinarily be the duty of the Tribunal to make an order joining a party whose interests are affected by the decision under review, that duty is limited by the function which the Tribunal performs and by its duty to provide a fair hearing and to deal with the matter as expeditiously as the subject matter of the review permits."

18. Deputy President Thompson in Re: Marine World Victoria Ltd and Minister for Arts, Heritage and The Environment (1986) 10 ALD 262 at 272 said:

"There is also the requirement that the matter be dealt with expeditiously. That, and the need to keep the costs within proper bounds, make it undesirable that there should be a multiplicity of additional parties each separately represented and presenting a separate case. Only if their interests affected by the decision under review are both substantial and significantly different from one another can that be justified."

Cf O'Connor J in Re: Boyd and Comcare (1991) 23 ALD 392 at 394 where her Honour held that the interests of Comcare as the Compensation Authority were not so significantly different from those of the employer as to permit the employer to be joined as a party.

19. In Commonwealth v Human Rights and Equal Opportunity Commission and Another (1987) 76 FCR 513 at 539, Mansfield J pointed out that whether a body such as the Respondent should take more than a submitting appearance in litigation before a Court "is a question to be decided in the circumstances of each case and in the context of the legislation then under consideration". In Commonwealth (supra), reference is made to the judgment of Brennan J (as he then was) in Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666 at 681. It is to be noted that Brennan J,a former President of this Tribunal refers to "curial" proceedings, that is to say proceedings before courts and not Administrative Review, a differentiation with which his Honour would have been acutely conscious, and admits to the desirability in certain circumstances of the deciding body appearing to argue against an Applicant's case.

20. The Respondent has filed a Statement of Facts and Contentions with the Tribunal and in that statement, it deals with the main issues before the Tribunal as it sees them. The Tribunal at hearing will have before it all documents that are in the possession or under the control of the Respondent and which are considered by the Respondent relevant to the Tribunal's review of the decision (section 37(1) of the AAT Act). This will of course include all submissions made to the Respondent and upon which it made its decision. The Respondent will be able to adduce further evidence at the hearing subject to relevance and to call witnesses.

21. The way in which the Respondent proceeds at the hearing of this matter is of course a forensic judgment for it, but if it believes that the Union can usefully add anything to the submissions it has already made, then it can call evidence. This evidence can then be tested in cross-examination.

22. There is nothing that separate representation for the Union can usefully add to the Tribunal's consideration of the matter. As stated, its submissions will be before the Tribunal and to the extent that they are relevant, no doubt the Respondent's representative will draw attention to them. If any of its officers can give useful evidence, then they can be called as part of the Respondent's case. I can see no forensic advantage to either the Respondent or indeed the Union in having witnesses called by the Union as opposed to the Respondent. Any such witnesses could only be regarded as giving evidence favourable to the Respondent and therefore the Respondent could be forbidden to cross-examine by way of leading questions.

23. All in all, I consider that given the Tribunal's duty to conduct its proceedings with little formality and technicality but with expedition, this objective can best be met by exercising my discretion against permitting the Union to be joined as a party.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of:

Senior Member M D Allen

Signed: K. Wong .......................................................................................

Associate

Date of Hearing 13 August 2003

Date of Decision 12 September 2003

Counsel for the Applicant Kate Eastman

Solicitor for the Applicant Greg McKay

Solicitor for the Respondent Craig Lenehan

Representatives for Party

seeking to be joined Pam Smith and Lynne Rolley